Opinion
No. 1 CA-CR 13-0039
02-11-2014
STATE OF ARIZONA, Appellee, v. AARON LEE PAYNE, Appellant.
Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-117178-001
The Honorable Brian Kaiser, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined. GOULD, Judge:
¶1 Aaron Lee Payne ("Appellant") appeals from his conviction and sentence for resisting arrest. Appellant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, no arguable ground exists for reversal. Appellant was granted leave to file a supplemental brief in propria persona on or before October 28, 2013, and did not do so.
¶2 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Finding no reversible error, we affirm.
Facts and Procedural History
We view the evidence in the light most favorable to sustaining the convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶3 On March 29, 2012, Phoenix police received a robbery call at 10th Place and Indian School Road. A description of the suspect was broadcast over police radio: a black male in his early 20's, wearing a red shirt and dark pants. Officers Bloom and Ojeda responded to the call as they drove past a bus stop located at 7th Street and Indian School Road in their marked patrol car. Officer Ojeda spotted Appellant, appearing to match the suspect description, standing at the bus stop.
¶4 When the officers first spotted Appellant, he was facing away from them. As the officers drove through the parking lot, Appellant made eye contact with them, then turned away from them, put his fists by his side, and puffed out his chest. Officer Bloom sensed that Appellant's body language and demeanor indicated that Appellant did not want to have any contact with the police.
¶5 Officer Bloom got out of the patrol car and approached Appellant. When Officer Bloom was five or ten feet away from Appellant, he identified himself as a Phoenix police officer, and said he needed to speak with Appellant. Officer Bloom asked Appellant to turn around, but Appellant did not respond and kept his arms by his side and his face turned away. Officer Bloom again requested that Appellant turn around, but Appellant did not. When Officer Bloom made a third request, Appellant looked over his shoulder, made eye contact with Officer Bloom, then turned his head and began walking away from Officer Bloom.
¶6 Officer Bloom believed Appellant was behaving suspiciously and could be the robbery suspect. He also thought Appellant might run. After Appellant took his second step, Officer Bloom grabbed his left arm, told him to stop and that they needed to talk. Appellant told Officer Bloom he had no right to touch him, and tried to walk away. Officer Bloom, still gripping Appellant's arm, pulled him back and told him to stop so they could talk. As the two struggled, Officer Bloom informed Appellant that the police were investigating a crime and if it could be determined that Appellant was not involved Appellant would be free to go. Officer Bloom also repeatedly told Appellant that he was being detained and was not free to leave. As the struggle escalated, Officer Ojeda entered and used his Taser to subdue Appellant. After the officers took Appellant into custody, the victim of the robbery informed the police that Appellant was not involved.
¶7 Appellant was charged by Information with one count of resisting arrest, a class 6 felony, and one count of aggravated assault, a class 5 felony. The state filed an allegation of historical priors, claiming Appellant had two historical prior felony convictions which could be used for enhancement. The state also alleged Appellant was on felony probation when he committed the current offenses.
¶8 At trial, an eight person jury unanimously found Appellant guilty of resisting arrest and not guilty of aggravated assault. Prior to sentencing, the court held a hearing on the allegations of historical prior convictions and probation status, and found by clear and convincing evidence that Appellant had two prior felonies for enhancement purposes, and that Appellant was on probation at the time of the current offense pursuant to A.R.S. § 13-708(C). The court sentenced Appellant to a presumptive prison term of 3.75 years. Appellant then filed a timely notice of appeal.
A.R.S. § 13-708(C) provides, in relevant part, that "a person convicted of any felony offense while the person is on probation for a conviction of a felony offense . . . shall be sentenced to a term of not less than the presumptive sentence . . . ."
Discussion
¶9 We have read and considered counsel's brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the finding of guilt. Appellant was present and represented by counsel at all critical stages of the proceedings. At sentencing, Appellant and his counsel were given an opportunity to speak and the court imposed a legal sentence.
¶10 This court ordered additional briefing on whether the trial court erred in determining, by clear and convincing evidence, that Appellant committed the current offense while on probation pursuant to A.R.S. § 13-708(C). Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (briefing on arguable issue required). Because Appellant did not object to this issue in the trial court, our review is limited to fundamental error review. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 608 (2005). In establishing fundamental error, "a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20.
¶11 It is unclear whether a defendant's release on probation under A.R.S. § 13-708 must be found by a jury beyond a reasonable doubt. Our supreme court held in State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265 (1987), that release status under former A.R.S. § 13-604.02(B) was an issue to be determined by the court, and that the standard of clear and convincing evidence applied to the court's determination. See State v. Cox, 201 Ariz. 464, 469, ¶ 18, 37 P.3d 437, 442 (App. 2002) ("Because proof of a § 13-604.02(B) allegation increases the statutory minimum penalty but not the statutory maximum, Apprendi does not require that the allegation be decided by a jury beyond a reasonable doubt; rather, the trial judge can decide the § 13-604.02(B) allegation by clear and convincing evidence."). However, in State v. Gross, 201 Ariz. 41, 45, ¶¶ 16, 19, 41 P.3d 815, 819 (App. 2001), we held that Apprendi effectively overruled Hurley, requiring that release status be determined under A.R.S. § 13-604(R) by a jury beyond a reasonable doubt. See State v. Benanti, 203 Ariz. 235, 241-42, ¶22, 52 P.3d 804, 810-11 (App. 2002) (holding that pursuant to Apprendi, release status must be decided by a jury beyond a reasonable doubt). See also Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2163-64 (2013) (holding that "facts that increase mandatory minimum sentences must be submitted to the jury" and established "beyond a reasonable doubt" pursuant to the 5th and 6th Amendment).
A.R.S. § 13-604.02(B) was the predecessor to current A.R.S. § 13-708(C).
Former A.R.S. § 13-604(R) was the predecessor statute to current A.R.S. § 13-708(D), which states that "a person who is convicted of committing any felony offense that is committed while the person is released on bond or on the person's own recognizance on a separate felony offense or while the person is escaped from preconviction custody for a separate felony offense shall be sentenced to a term of imprisonment two years longer than would otherwise be imposed . . . ."
¶12 We need not decide whether the trial court erred in determining Appellant's release status by using a clear and convincing standard, because even if we assume this was fundamental error, Appellant has failed to show prejudice. Here, we are unable to conclude that "a reasonable jury, applying the appropriate standard of proof, could have reached a different result than did the trial judge." Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609.
¶13 Appellant's probation officer testified at the consolidated sentencing hearing that: (1) he personally supervised Appellant; (2) he recognized Appellant; and (3) Appellant was on probation on March 29, 2012, e.g., the date Appellant committed the subject offense of resisting arrest. Further, a certified copy of a minute entry in Maricopa County Superior Court cause number CR2011-111007 was introduced at the hearing. This minute entry confirms that Appellant was placed on probation for a period of three years beginning on March 24, 2011. Appellant's criminal history report - which includes a photograph of Appellant and his date of birth - likewise confirms that he was on probation in Maricopa County Superior Court cause number CR2011- 111007 for attempted possession of narcotic drugs for sale and possession or use of marijuana at the time of his conviction in this case. See Criminal History Information, at 2-3.
¶14 Accordingly, based on the evidence showing Appellant was on probation at the time he committed the felony offense in this case, we conclude there is no reversible error. We therefore affirm Appellant's conviction and sentence.
¶15 Counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do nothing more than inform Appellant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. KESSLER Judge, specially concurring:
Pursuant to Arizona Rule of Criminal Procedure 31.18.b, Appellant or his counsel has fifteen days to file a motion for reconsideration. On the Court's own motion, we extend the time to file such a motion to thirty days from the date of this decision.
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¶16 I concur in the majority's decision but write separately on the issue of whether the court deciding Appellant's release status for purposes of increasing the statutory minimum sentence was error.
¶17 In Alleyne v. United States, the United States Supreme Court held that Apprendi applies with equal force to facts that increase the statutory mandatory minimum sentence. 133 S.Ct. 2151, 2160 (2013). In State v. Gross, we concluded that a defendant's release status is not exempt from Apprendi when it exposes the defendant to a sentence beyond the statutory maximum. 201 Ariz. 41, 45, ¶¶ 16, 19, 31 P.3d 815, 819 (App. 2001). Thus, together Alleyne and Gross apply Apprendi equally to a defendant's release status, including his probation status, when that fact exposes him to a higher mandatory minimum sentence.
¶18 Although Alleyne had not been decided at the time Payne was convicted and sentenced, its rationale applies to cases pending on direct review because Alleyne presented a new rule of constitutional law. Id. at 43, ¶ 4, 31 P.3d at 817.
¶19 We need not decide whether Payne's failure to object to the court deciding his release status requires fundamental or harmless error review. Under either analysis, we would have to determine if there was reversible error. I concur with the majority that there was no reversible error here.